Climate: Supreme Court to hear landmark legal challenge
A landmark legal challenge that could have major repercussions for new fossil fuel developments in the UK will be heard today by the Supreme Court in London.
The legal case, brought by former Surrey resident Sarah Finch on behalf of the Weald Action Group, and supported by Friends of the Earth, challenges Surrey County Council’s decision to grant planning permission for oil drilling at Horse Hill in the Surrey countryside.
Ms Finch contends that the environmental impact assessment should have taken into account the climate impacts that would inevitably arise from burning the extracted oil (over three million tonnes could be produced), known as ‘Scope 3’ or ‘downstream’ emissions, which didn’t happen during the planning process.
Scope 3 emissions are increasingly being left out of environmental impact assessments when planning applications are made for fossil fuel projects, despite the huge climate impact these projects can have, the mounting climate crisis and the UK government’s commitment to net zero. But this could all change if this legal challenge succeeds.
The significance of the case is highlighted by the fact that West Cumbria Mining, the company behind plans for a controversial new coal mine in Cumbria, is also an intervener in the Supreme Court case. The legal challenge could have significant ramifications for the future of the proposed mine as the carbon emissions from burning the extracted coal were not included in the developer's environmental impact assessment.
Friends of the Earth is intervening in Ms Finch’s case, as it did in the High Court and Court of Appeal, and has written a briefing on the legal challenge
The Office for Environmental Protection (OEP), which was set up under the Environment Act 2021 to protect and improve the environment by holding the government and other public bodies to account, has also been granted permission to intervene (see OEP press release here), as has Greenpeace.
Campaigner Sarah Finch, who has mounted the legal challenge, said:
"The biggest climate impact from this project will occur when the oil is eventually burned. If councils can ignore these 'downstream' impacts when making planning decisions, then we have no hope of staying within safe climate limits. The present lack of clarity over Environmental Impact Assessments is dangerous. I hope that the Supreme Court will confirm that no fossil fuel development – coal, oil or gas – should be allowed without consideration of its full climate impact.”
Friends of the Earth lawyer, Katie de Kauwe, said:
“In the midst of a climate crisis, it’s incomprehensible that planning bodies can give the go-ahead to major new fossil fuel developments without taking their full climate impact into account.
“Sarah Finch’s landmark legal challenge could force planning authorities to evaluate the emissions when the extracted gas, coal and oil is actually burnt – with potentially huge repercussions for developments such as the proposed coal mine in Cumbria.”
Hannah Brown, Senior Solicitor, Richard Buxton Solicitors, said:
‘‘This case could have a major impact on how fossil fuel developments will be considered in the future. Even though all parties agreed that the carbon emissions from using the refined oil from this well are inevitable, the Court of Appeal held that these downstream emissions could be disregarded. Friends of the Earth believes that the plain language of the regulations requires an assessment of the nature and magnitude of the emissions from the combustion of the oil prior to the grant of planning permission, and if the Supreme Court agrees, that will ensure these impacts must be considered when decisions are made about whether to permit fossil fuel development.”
Rowan Smith, solicitor at law firm Leigh Day, said:
“It’s difficult to overstate the importance of this case. The Supreme Court will rule conclusively on whether or not the climate change impact of fossil fuel development in the UK must be taken into account before planning permissions are granted. There is a huge amount at stake for the future of the planet and the UK’s ability to meet its carbon reduction targets.”
Notes to editors:
Sarah Finch brought this case on behalf of the Weald Action Group, an umbrella for local groups that campaign against the extraction of oil and gas in the southeast of England. She is being represented in court by Marc Willers KC of Garden Court Chambers, Estelle Dehon KC and Ruchi Parekh of Cornerstone Barristers, and her solicitor is Rowan Smith at Leigh Day LLP.
Friends of the Earth have a legal briefing on the Supreme Court hearing. And a previous, and fuller, legal briefing on the court of appeal hearing.
Friends of the Earth Limited is represented in the case by Paul Brown KC of Landmark Chambers, and Nina Pindham of Cornerstone Barristers and by Matthew McFeeley and Hannah Brown of Richard Buxton Solicitors. The lead in-house lawyer at Friends of the Earth is Katie de Kauwe.
Friends of the Earth (and local campaign group South Lakeland action on Climate Change [SLACC] are challenging the Secretary of State’s decision in December 2022 to grant planning permission for a new coal mine near Whitehaven in Cumbria. The three-day court hearing is taking place 24-26 October 2023. In its grounds to challenge the government’s decision, Friends of the Earth has reserved the right to argue, if the Finch appeal succeeds, that the Secretary of State’s approach to downstream emissions was unlawful in relation to the Whitehaven coal mine.